Chan Sing v. City of Astoria

• Decision Date: 29 February 1916
• Citation: 79 Or. 411,155 P. 378
• Parties: CHAN SING ET AL. v. CITY OF ASTORIA ET AL.
• Court: Oregon Supreme Court

155 P. 378

79 Or. 411

CHAN SING ET AL. v. CITY OF ASTORIA ET AL.

Supreme Court of Oregon

February 29, 1916

In Banc.

Appeal from Circuit Court, Clatsop County; J. A. Eakin, Judge.

Suit by Chan Sing and others against the City of Astoria and others. From a decree in favor of the defendants, the plaintiffs appeal. Reversed.

This is a suit to enjoin the city and its officers from enforcing an ordinance requiring certain classes of business to close at fixed hours of each day in the week. The original complaint alleged the incorporation of the city as a municipality under acts of the Legislative Assembly and "pursuant to acts amendatory thereof adopted by the legal voters of said municipality." It is averred:

"That subdivision 3, § 38, of the charter of said municipality is in these words as follows, to wit: '3. To license, tax and regulate auctioneers, hotel runners, solicitors, book agents, real estate and insurance agents, brokers, taverns boarding houses, hawkers, peddlers, pawnbrokers, barbers bakers, dealers in general merchandise, clothing, boots and shoes, groceries, dry goods, meat markets, hardware tinware, crockery, glassware, millinery, dealers in cigars and tobacco, fruit and confectionery, lawyers, doctors furniture stores, dentists, book and stationery stores commission merchants, tailoring establishments, jewelry stores, and all offensive trades and occupations, and to define what shall constitute the same.' "

It is further alleged that section 39 of the charter reads thus:

"The power and authority given to the council by section 38 can only be exercised or enforced by ordinance, unless otherwise provided, and a majority of the council may pass any ordinance or make any by-law not repugnant to the laws of the United States or of this state, necessary or convenient for the carrying such power and authority, or any part thereof into effect, and as may be necessary to secure the peace and good order of the city, and the health of its inhabitants."

The pleading states that so far as it could lawfully do so the common council of the defendant city, on December 21, 1914, passed an ordinance, of which section I is here set down:

"Every person, firm, company or corporation owning, operating, or conducting any store within the city of Astoria, Clatsop county, Oregon, selling, and dealing in general merchandise, groceries, clothing, boots and shoes, dry goods, jewelry, meats, and hardware, shall close or cause to be closed, such place or places of business at the hour of six (6) o'clock p. m. of each day of the week, excepting Saturday, on which day the same shall close at the hour of nine (9) o'clock p. m. and such place or places of business hereinbefore designated, shall be kept closed until the hour of five (5) o'clock of the morning following and all such place or places of business shall be kept closed and not transact any business therein on or during the first day of the week, commonly called Sunday, provided, however, that the provisions of this ordinance shall not be effective for a period of one (1) week preceding Christmas Day, the 25th day of December of each and every year."

The plaintiffs litigating for themselves and all the others in similar situation describe their several establishments, one as the owner of a clothing store and tailoring shop, another as a grocery store, a third as a novelty store, and the fourth and fifth as clothing stores. They say they derive a large portion of their trade from working men and their families who are habitually employed in various vocations from 7 a. m. to 6 p. m. daily except Sunday; that many others are engaged in fishing in which the hours of labor are very irregular and sometimes much prolonged, so that it is inconvenient for such people to make purchases before 6 o'clock in the evening. With but one exception the plaintiffs reside with their families in the rear of their stores and employ no clerks or other assistance except that given by members of their families or those directly interested in the business. According to the allegations of the complaint there is in Astoria a class of business men owning large stores, denominated in the pleading "principal merchants," all of whom close their stores at 6 o'clock in the evening because the clerk's union, whose members they employ, refuses to work after that hour. It is further stated that there are various stores and places of business in the city not enumerated or included within the terms of the ordinance and which will not be affected thereby, but which will continue to remain open every night of the week until 9 or 10 o'clock and all day on Sunday. In this class the plaintiffs enumerate drug stores, which in addition to drugs and medicines, in every instance sell stationery, perfumes, toilet articles, and other goods mentioned, besides stores devoted to the sale of cigars, millinery, fruit and confectionery, furniture, books, and stationery, all of which will be exempt from the ordinance. They say that if the city law in question is enforced against them, they will not only be compelled to close their business and lose their trade, but also ingress to and egress from their dwelling quarters will be seriously prejudiced. On motion of the defendants the court struck out the quotations from the charter of the city, together with all allusion to other occupations not subject to the ordinance. Other matter was stricken out, but, owing to the fact that it was described by reference to words and lines of the original complaint which is not before us, the printed abstract is unintelligible on that subject. An amended complaint was filed, omitting the matter which had been elided from the original. To this latter statement of the grievance of the plaintiffs the court sustained a demurrer, and, as they refused to plead further, rendered a decree dismissing the suit. This appeal followed, wherein the plaintiffs assign as error the striking out of part of their original complaint and sustaining the demurrer to the amended pleading.

Edward E. Gray and Murray C. Wheat, both of Astoria, for appellants. A. W. Norblad, of Astoria, for respondents.

BURNETT, J. (after stating the facts as above).

A court of equity will sustain a suit to enjoin prosecutions under a void law. Spaulding v. McNary, 64 Or. 491, 130 P. 391, 1128.

It is stated in section 90, L. O. L.:

"In pleading an ordinance or enactment of any incorporated city, town, or village, or a right derived therefrom, * * * it shall be sufficient to refer to such ordinance or enactment by its title and the date of its approval, and the court shall thereupon take judicial notice thereof."

This does not provide an exclusive rule of pleading, nor deprive the pleader of the right to state the provisions of either a charter or an ordinance about which the question is raised. In Birnie v. La Grande, 153 P. 415, we held that the court would not take judicial notice of initiative charters of cities and towns. Under subdivision 3, § 729, L. O. L. the courts assume knowledge of--

"public and private official acts of the legislative, executive, and judicial departments of this state, and of the United States."

Such acts of cities and towns are not within that category, and must be pleaded in some form. Before the adoption of the initiative system in this state, the courts under the quoted clause of section 729, L. O. L., took notice of municipal charters because they were always enactments of the Legislative Assembly. Under the present régime, however it would be impracticable, besides beyond the scope of the statute, for any court to take judicial notice of all the initiative measures adopted by every municipality from the metropolis to the smallest crossroads village in the state. The plaintiffs were well within the rule of pleading when they set out the two sections of the charter mentioned, and it was error to strike out that part of the original complaint. It was also permissible for them to point out other occupations similar in some respects to their own, which would not be affected by the ordinance, all for the purpose of challenging the justice of the...